Why Does Mississippi Want to Execute Michelle Byrom?

Mississippi wants to execute a 56-year-old mentally ill woman Thursday even though no one now seems to believe that she murdered the husband who had battered and abused her for years. Mississippi wants its pound of flesh. But why from Michelle Byrom?

The Byrom family tragedy in Mississippi is a one-act play, with four characters, with a sadly inevitable ending. There is Edward Byrom Sr., who was murdered in his own bed on June 4, 1999. There is his son, Edward Byrom Jr., a frequent victim of his father's abuse, who has since confessed to the killing. There is Joey Gillis, the son's friend, initially charged with shooting the elder Byrom in a murder-for-hire plot. And there is Michelle Byrom, the victim's mentally ill and serially abused wife, who was charged with hiring Gillis to kill her husband.

Of the three still-living characters in this grim story, two are out of prison now, having paid the debt to society that Mississippi's justice system had decreed. The third may be executed Thursday at old Parchman Farm, home of the Mississippi state penitentiary: the only woman in this story, the mentally ill wife of the slain man. Michelle Byrom, 56, who has not been accused of firing the shots that killed her husband, would become the first woman in 70 years to be put to death in Mississippi.

The case of Michelle Byrom contains the unholy trinity of constitutional flaws sadly so common in these capital cases. Her lawyers acted incompetently at trial, making one mistake after another. Exculpatory evidence that likely would have changed the outcome of her trial was hidden from her by her trial judge, and perhaps by prosecutors as well. Dealing with co-defendants, prosecutors played a form of musical chairs with the facts and with the charges. The only thing missing from the usual equation here is race, but it was replaced by a callous disregard, at all levels of law, for the impact of domestic abuse upon this doomed family.

It is uncertain whether Byrom's execution will proceed as planned. The Mississippi attorney general has sought March 27th as an execution date, but the state supreme court has not yet approved the date, and it would be unusual for the court to do so so soon before an execution date. Either way, the attorney general has made it clear that he wants this execution to happen. His decision is indefensible as a matter of law because Byrom's trial was manifestly unconstitutional.

It is even less acceptable as a matter of morality. This woman was horribly abused her whole life, up to and including her life with the murder victim. She was rendered mentally ill by this abuse. For 15 years, prosecutors and judges have known that it was her son who shot his father. And yet still the state relentlessly has sought to impose the death penalty. Mississippi wants its pound of flesh. But why from Michelle Byrom? What would it prove? Whose interest would it serve?

***

It's hard to know if irony is the right word to capture what happened to Edward Byrom Sr. He began his relationship with Michelle Byrom roughly 40 years ago by committing statutory rape. She was 15. He was 31. She was likely willing to enter into this relationship because her stepfather had sexually abused her - had even pimped her out to other men. Not only her father abuse Michelle, he abused her siblings as well, and when their mother sought to intervene, she was physically harmed. The pattern established in Michelle's life, the abuse continued with Byrom. He was plainly savage with her.

Edward and Michelle Byrom soon had a son, Edward Jr., but a man willing to persistently abuse his wife is also apt to persistently abuse his children. And, indeed, the elder Byrom regularly hit his son and subjected him to horrible and continuous verbal abuse. Imagine a father saying to a son over and over, amid a pattern of physical abuse, "You were a fucking mistake to begin with!" Here is how Edward Jr. recounted the murder in a pre-trial letter his mother smuggled out of jail. (View a copy of the full letter here.)

I sit in my room for a good 1 1/2-2 hours, and dad comes in my room, and goes off on me, calling me bastard, nogood, mistake and telling me I'm inconciderate (sic), and just care about my self, and he slaps me, then goes back to his room. As I sat on my bed, tears of rage flowing, remembering my childhood, my anger kept building and building, and I went to my car, got the 9 mm., and walked to his room, peeked in, and he was asleep. I walked about 2 steps in the door, and screamed, and shut my eyes, when I heard him move, I started firing.

When I opened my eyes again, I freaked! I grabbed what cassings (sic) I saw, and threw them into the bushes, grabbed the gun, and went to town. I saw Joey, told him to hide the gun, and he said he'd take it to his spot, which I knew from when I'd sell him stuff, and went and told mom that dad was dead, and before her terry eyes could let loose I ran out of the hospital, and headed for the house, I was so confused.

Tishomingo County didn't see the murder as a case of an abused child turning on his tormentor. Instead, they saw a plot, a murder-for-hire conspiracy between the murder victim's wife, his son, and a friend of his son. They saw the shooter as Joey Gillis, the friend, even though Gillis had no gunshot residue on his hands. And they saw the plot's mastermind as Michelle Byrom, with motive to rid herself of an abusive husband. They based this theory on Edward Jr.'s verbal statements to investigators, the recordings of which were then lost or destroyed.

Prosecutors indicted all three of the alleged co-conspirators on capital murder charges. Mississippi had a self-serving confession from Edward Jr., implicating his mother and blaming Gillis for the murder. And they had a confession from Michelle Byrom herself, taken while she was heavily medicated, amid questions about her mental stability. What exactly did this confession sound like? The sheriff told the addled Byrom: "Listen, we are going to be able to pull enough together ... don't leave [Edward, Jr.] hanging out here to bite the big bullet." To which Michelle Byrom, Edward Jr.'s mother, replied: "No, he's not going to. I wouldn't let him ... I will take all the responsibility. I'll do it."

***

With the two confessions, dubious or not, the prosecution's case was easy enough. It was made far easier, however, by the poor work of Byrom's attorneys. They presented no witnesses on their client's behalf during the trial and, after her quick conviction, they inexplicably advised Byrom to waive her right to have a jury determine her sentence. Yet when it came time to present the sentencing judge with mitigating evidence to spare her life - and Michelle Byrom's whole life to that point had essentially been a series of mitigating factors - defense attorneys failed to adequately do so. She was promptly sentenced to death.

The defense attorneys, alone, did not violate Michelle Byrom's constitutional rights. The trial turned, as many of these dubious capital cases turn, on evidence the jury never got to see. While Edward Jr. was telling prosecutors that his mother had conspired with Gillis to kill his father, he was telling his mother, and the court-appointed psychologist, that he was the shooter and that neither his mother nor his friend had anything to do with the crime. Prosecutors called these confessions "conflicting testimony" and chose to believe the version that included both mother and son in the murder plot with Gillis as the shooter.

The psychologist, a court-appointed doctor named Criss Lott, plays a central role here. He was appointed to evaluate all three defendants for mental competence - a clear conflict of interest. But after he spoke with Gillis and Edward, Jr., he realized that the two suspects were telling a consistent story - one that did not include Michelle as culpable in any murder-for-hire plot. He brought these concerns to the trial judge, the man who had appointed him. He told the judge in private that Edward, Jr. had confessed to killing his father. In the official report he sent to the court, however, he did not mention this confession. The defense was unaware of it at trial.

So the judge knew that Edward Jr. had confessed both to his mother and to the court-appointed psychologist about murdering his father. But the jury never got to see those confessional letters to Michelle Byrom and never got to hear directly from Dr. Lott about Edward Jr.'s culpability. The judge precluded the letters from being introduced to jurors as a way of sanctioning Michelle Byrom's attorneys for not timely sharing them with the state. And the doctor's full testimony was not disclosed. At the time of the Byrom's trial, it's possible that no one but the judge knew what Dr. Lott was willing to say about Edward, Jr.

***

Until (and after) her husband's death, Michelle Byrom's life had been a mess. She had been diagnosed with a series of serious illnesses. She regularly harmed herself - not just by drinking alcohol, but by, for instance, consuming rat poison.

How did prosecutors deal at trial with the defense's emphasis on the abuse Michelle Byrom had endured at the hands of her husband? They downplayed it. They blamed the mentally ill, abused woman. "There's been arguments made that maybe Eddie wasn't the husband or the father that he should've been," the prosecutor said during closing arguments at Michelle Byrom's trial. "Why didn't she just leave him? Why didn't she divorce him? Why didn't she seek sanctuary somewhere else?" This argument, remember, was made less than 15 years ago, when the entire world, even Mississippi, had become educated about domestic abuse and its devastating impact upon the free will of its victims.

But the answer to the question, "Why didn't she leave him?" was offered at trial in written form by Dr. Keith Caruso, a psychiatrist hired by the defense to evaluate Michelle Byrom. His post-trial affidavit was blunt: "Michelle Byrom presented a clinical picture that is entirely consistent with someone who endured extreme abuse as a child," he concluded. "If I had been called to testify at the penalty phase of Michelle Byrom's trial, I would have offered the opinion that because of her depression, alcohol dependence, Munchausen syndrome, and Borderline Personality Disorder, she was inclined to harm herself and act in a self-defeating manner, so that she was psychologically unable to leave the abusive relationship with her husband."

If I had been called to testify. Byrom's attorneys never called this expert to the stand during the sentencing phase of her trial. They did not adequately impress upon this judge the severity of her mental illness or the profound impact decades of abuse by violent men had upon her psyche. Nor did they use this expert to undermine the reliability of the confession prosecutors had used against Byrom. One expert recently suggested this is the epitome of "ineffective assistance of counsel" under constitutional standards. Dr. Caruso evidently agrees. "I personally was stunned," he later recounted under oath, when Byrom's attorneys chose not to call him as a witness or to make their sentencing case to a jury.

***

Through the years, Mississippi has stoutly defended the result of the trial of Michelle Byrom - and so have the courts. The jury heard Michelle Byrom's confession and believed it, Mississippi argues. And jurors heard about Edward Jr.'s own confessions - even though the letters themselves never came into evidence - and thus were able to judge for themselves whether he was lying about his mom or lying about himself. There was no prejudice to Michelle Byrom by virtue of the fact that her lawyers never presented any mitigating witnesses, the state says, or because they never knew about Dr. Lott's epiphany.

Prosecutors were able at trial to morph Michelle Byrom's mental illness into something criminal - telling jurors that the crime was all part of an angry woman's plot to get insurance money from her abusive husband's estate. And you can still hear the echoes of this view in the most recent court papers filed by state attorneys. There is no acknowledgement of the trial prosecution's evolving theories of the case. There is no regret for the way the issue of Michelle Byrom's abuse was addressed in court. Byrom was a fraud, the state still insists, willing to fake her own illnesses in order to cover up her culpability for murder.

Maybe yes and maybe no. Mental illness provides no guarantee of an acquittal, of course; the nation's prisons are teeming with mentally ill people. But mentally ill people still are entitled to a fair trial, and to have evidence of their mental illness play a proper role in the resolution of their case. This didn't happen to Byrom, not at all, but the state says that it doesn't matter. It is too late now for Michelle Byrom to be raising the questions she now is raising about the way her trial unfolded, the state argues. That time came and went about a decade ago, when Dr. Lott's role in this saga became better known.

If you read Mississippi's briefs in this case, and if you read the rulings of the state and federal courts that have defended this reedy result, you come to an inescapable conclusion: the state, and the judiciary, don't want to go back and look at what is under the rock of this case. No state official wants to see a hearing at which Dr. Lott testifies. No one wants to have to explain under oath how prosecutors now can say Gillis was not the shooter but still believe Michelle Byrom should be executed for hiring him to kill her husband. No one wants to answer questions about the trial judge here who evidently ignored his own appointed expert on the question of Michelle Byrom's culpability for murder.

***

Let's assume that the police and prosecutors were correct back in 1999 and 2000. Let's assume that this severely mentally ill, serially abused woman had conspired with her son to kill their abuser. Let's assume that Dr. Lott was wrong about his conclusion that Edward Jr. was being honest when he confessed to killing his father without his mother's help. Let's assume that Michelle Byrom's trial was fair even though the trial judge failed to disclose exculpatory evidence to the defense. Even if you assume all these things the execution of Michelle Byrom still would be a monstrous injustice.

That's because both of the people who actually could have shot Edward Sr. - his son or Gillis, one of whom indisputably was the trigger man - are both now out of prison. Mississippi released Gillis from prison in 2009 - he served less than a decade after making a deal with prosecutors. And Mississippi released Edward Jr. from prison last year. He, too, got a sweetheart deal for purporting to rat out his own mother even though state attorneys now say he contradicted himself. Mississippi repeatedly altered its version of this crime, in other words, to try to maximize the punishment to the one person who didn't kill Edward Sr.

This unequal justice is particularly unacceptable when you consider how eager prosecutors themselves have been to back away from their initial theory of the case, with Gillis as the shooter and Michelle Byrom as the mastermind. After Michelle Byrom was handed her death sentence, Dr. Lott decided that it was time to disclose to someone other than the trial judge what Edward Jr. had confessed to him. So Dr. Lott told Gillis' lawyers that Edward Jr. had confessed to being the shooter and had exonerated Gillis. That disclosure prompted prosecutors to drop the capital charges against Gillis.

But to this day that bombshell still has not helped Byrom get a fair trial. With Edward Jr.'s confession endorsed by the court-appointed expert, prosecutors realized they'd never be able to get a death sentence against Gillis. And that means they never would have been able to get a death sentence against Michelle Byrom, either, had this evidence been made public at her trial. But no state prosecutor or judge has ever gone back and remedied the mistake that was made at Michelle Byrom's trial. Instead, Mississippi has dug in, arguing that the result of the Byrom trial is both fair and just.

***

All of this explains why there are so many unanswered factual questions today. How could the trial judge have permitted a single expert to evaluate all three co-defendants in a capital murder case? How could this judge, knowing that his expert had concluded that Edward Jr. had killed his father, sentence Michelle Byrom to death anyway? How could he have failed to disclose Dr. Lott's conclusions to the defense? And how could the judiciary have any confidence in the accuracy and reliability of the verdict and sentence here without ever having an evidentiary hearing to question Dr. Lott, and the trial judge, about these circumstances? (The Mississippi Supreme Court has pending before it today a motion for just such a hearing).

There are questions of law here, too. How can the courts not see the conduct of Michelle Byrom's defense attorneys as "ineffective assistance of counsel"? First, they made the mistake of believing that they could spring the confessional letters of Edward, Jr. upon prosecutors at the last minute. Then, when the judge barred those letters from being shown to jurors, the defense compounded their original mistake by believing that the trial was so flawed it would be overturned - and so they failed to present their best case, figuring they would get another chance at a second trial. They gambled. In a capital case. In Mississippi. Their client lost.

And there are questions as well that go to the heart of our criminal justice systems. Exactly what good are our appellate courts if they fail so consistently to remedy obvious trial errors like the ones here? What hollow legal standards are the judges on these courts employing to deny relief to people like Michelle Byrom and how far are these standards from our own standards of justice? In this case, for example, the lawyers who failed Byrom at her trial also failed her on her direct appeal. The fact that she was twice denied the effective assistance of counsel has been used against her, over and over again, by appellate judges.

I don't know which Byrom confession I believe but it doesn't matter. The woman Mississippi wants to execute this week did not get anything close to a constitutionally fair trial. The execution of this woman, in these circumstances, would send a series of chilling message from Mississippi to the rest of the world. It would say the state's justice system still won't acknowledge the import of domestic abuse. It would say that the constitutional right to effective counsel is meaningless. And it would say that the justice system is more interested in protecting its own than in seeking the truth about what really happened to this wretched family.

[Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists.
Cohen is the winner of the American Bar Association's 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society's 2012 Genesis Award for his coverage of the plight of America's wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O'Brien Awards for distinguished commentary about horse racing.]

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